The proposed claim indicates that Claimant
"[s]tepped from the newly paved roadway onto the old road surface causing her to
fall sustaining serious and permanent injuries" while crossing Route 42,
opposite a roadside grocery store called Shopron Camp, in Fallsburgh, New York
on August 26, 2000. (Proposed Claim, ¶ 3). Claimant has submitted
photographs depicting the location of her fall which will be discussed in more
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ).
Turning to the substance of the motion, the factors the Court must consider in
determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
5. the failure to file or serve upon the attorney general a timely claim or
to serve upon the attorney
general a notice of intention resulted in substantial prejudice to the
6. there is any other available remedy.
The Court will first examine the factor that has been characterized as the most
decisive component in determining a motion under CCA 10 (6), namely whether the
proposed claim appears meritorious, since it would be futile to permit a
meritless claim to proceed. (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant
must establish that the proposed claim is not patently groundless, frivolous, or
legally defective and that there is reasonable cause to believe that a valid
claim exists. (Id., at 11). Here, the State argues that
Claimant's proposed claim fails to provide sufficient details such as how the
accident occurred, a description of the defect at issue, or the injury suffered.
In examining the issue of merit the Court is permitted to review the record as
a whole, including supporting affidavits and exhibits thereto.
., at 11). Although the Court agrees that the proposed claim,
in and of itself, is lacking in detail, much of the information the State argues
is missing is contained in the moving papers as a
By way of example, the State contends
that the papers do not adequately describe how it is alleged to be liable or
"exactly what condition is alleged to be defective". (Affirmation of Joseph F.
Romani, AAG, ¶ ¶ 4 & 6). However, the attorney's affirmation
contains specific references to "uneven" pavement and the State's creation of
this condition through its "re-paving" and "resurfacing" of the roadway.
(Affirmation of Wilbert Ramos, Esq., ¶ ¶ 4 & 6 [f]). Moreover,
attached to the attorney's affirmation are photographs depicting the accident
location in which a height differential between two layers of pavement is
visible. Based upon the key words quoted above, together with said
it seems clear that Claimant's
focus is a height differential between the older and newer road surfaces alleged
to have been created by the State's resurfacing of the subject roadway. Also,
another piece of information alleged to be missing by the State, namely the type
of injury, is found in the attorney's affirmation in which Claimant's injury is
listed as an oblique fracture of the distal fibula of the left ankle.
(Affirmation of Wilbert Ramos, Esq., ¶ 3; Affirmation of Joseph F. Romani,
AAG, ¶ 4). Accordingly, in viewing this record as a whole, the Court finds
reasonable cause to believe that a valid claim exists.
Next, Claimant's excuse for her delay is that she filed a "Notice of Claim"
with the wrong entities believing that the County of Sullivan and Town of
Fallsburgh owned and maintained the subject roadway. It is well-settled that a
mistake relative to the proper entity to sue, whether it arises from ignorance
of the law or facts or mere confusion, is not an acceptable excuse. (Erca v
State of New York, 51 AD2d 611, affd 42 NY2d 854). As such, this
factor weighs against Claimant.
Although the next three factors of notice, opportunity and prejudice are
typically discussed together, Claimant's arguments relative to notice warrant
separate discussion in this instance. More specifically, Claimant alleges that
she does not need to establish notice of the essential facts constituting the
claim because the State created the defective condition. (Affirmation of Wilbert
Ramos, Esq, ¶ ¶ 2, 4, 6 [a] & [b]). In this Court's view,
however, it appears that Claimant is confusing the concept of notice relating to
her burden of proof at trial as compared to her burden of establishing notice of
the essential facts constituting a claim for the purpose of a CCA 10 (6) motion.
Claimant is correct that at trial, notice - actual or constructive - need not be
established when a defendant created the dangerous condition at issue.
(Browne v Big V Supermarkets, 188 AD2d 798, lv denied 81 NY2d
708). This principle, however, is distinct from Claimant's obligation to
establish notice of the essential facts constituting a claim in a late filing
application, which is not obviated when the State created the defective
condition. The concept of notice in a late filing application relates to the
State's notice of an accident after an accident has actually occurred, thereby
permitting the State to investigate the claim if it so chooses. (Wolf v
State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N.
Y., 131 Misc 2d 1013). As such, the State's creation of a dangerous
condition does not equate to notice of the essential facts constituting a claim.
Otherwise, in late filing motions, the State would be deemed to have notice of
every claim arising from a dangerous condition it created, even before an
accident occurs. Accordingly, this Court finds that Claimant's argument that
she need not establish notice of the essential facts constituting a claim in a
late filing application when the State is alleged to have created the dangerous
condition to be without merit. Claimant has not otherwise established that the
State had notice of the essential facts constituting this claim within
the requisite 90 day statutory period following this accident. Thus, the Court
finds this factor weighs against Claimant.
With respect to the State's opportunity to investigate this accident, Claimant
concedes this point and thus this factor weighs against her application.
(Affirmation of Wilbert Ramos, Esq., ¶ 6 [c]). On the issue of prejudice,
Claimant contends that the State will not suffer substantial prejudice if her
application is granted, because the conditions at the accident scene remain
unchanged since the date of the accident. Claimant avers that "the condition
has not changed since the date of the occurrence" and that the photographs
depict "the location and condition that caused my
(Petition of Rebecca Sabel, ¶
9). For the purposes of this motion "[f]acts stated in a motion for leave to
file a late claim against the State are deemed true for purpose of motion, when
not denied or contradicted in opposing affidavits [citations omitted]."
(Sessa v State of New York
, 88 Misc 2d 454, 458, affd
63 AD2d 334,
47 NY2d 976). The State has not contradicted this factual
representation from anyone having first-hand knowledge of the scene. As such,
the Court finds that without any proof establishing the condition at the
accident location has changed that the State will not suffer substantial
prejudice if the requested relief is granted. (Matter of Santana v New York
State Thruway Auth.
, 92 Misc 2d, at 13). Accordingly, the
Court finds the factor of prejudice weighs in Claimant's favor.
Finally, neither party argues that there are any other alternative remedies
available to Claimant. Thus, this factor weighs in Claimant's favor.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that two of the six statutory factors, including the
all-important issue of merit, weigh in favor of Claimant's motion for permission
to late file.
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to file a late claim, Motion No. M-64717, is GRANTED. Claimant shall file a
claim in the Office of the Clerk and serve a copy of the claim upon the attorney
general within sixty (60) days from the date of filing of this Order in the
Chief Clerk's Office of this Court. Furthermore, the claim should be revised to
reflect the terms of this Decision and Order. The service and filing of the
claim shall be in conformity with all applicable statutes and rules of the Court
with particular reference to CCA § § 10, 11 and 11-a.